Your baby & the Law: A peak into your child’s rights

‘All rise!’goes the Court Clerk and everyone in the courtroom responds accordingly as the judge saunters in. They take their seats after the court proceeding that ensures that the involved parties are present. The accused are a man and a woman, and the complainant; a little, gentle person, cooing, drooling away, and hopelessly trying to leap out of his cot to crawl to the more intriguing world out there.

After a barrage of examinations, the time of reckoning comes. The court room is dead silent as the judge begins reading the judgement, which at the beginning seems unpredictable, but is eventually concluded with. This court finds the accused guilty and liable to a summary conviction to a term of 12 months imprisonment and a fine of Ksh$0,000. The faces in the room refrain from showing their jubilation, and as they make for the exit, it is dear that they can hardly wait to step out and shout, ‘Justice!’

Well, that is not what happens. More often than not, there is no baby-cot in the court—definitely not literally, and to disappoint you further, and to a good extent, not even figuratively. Meaning, your baby’s representation by the law is quite insufficient. And the main culprit is your ignorance on what your baby is worthy of.

The children’s rights are found in the children’s Act 2001, an Act which domesticates international principles and standards of children’s rights as laid down in the UN CONVENTION ON THE RIGHTS OF THE CHILD 1989, explains June Odhiambo Ashioya, an Advocate of the High Court of Kenya. The most fundamental is the Right to Life, as all the other rights seek to strengthen this one, so that the child not only lives, but lives a meaningful life.  At least the Kenyan law is clear that your baby is entitled to her rights—right from conception, as stated in Section 4 of the Children’s Act. This intones that parental responsibility of the child is mandatory in accordance to the law—not something done out of choice. It is in this regard the abortion is a criminal offense, except in circumstances where it is shown and certified that the mother’s life is at risk by two medical doctor’s registered under the medical practitioners board, or in cases where a woman conceives as a result of rape.’

It is your baby’s right that you attend antenatal clinic.  A mother should be obliged to go through all the necessary check-ups that will have the baby grow to term. Ante natal is inclusive of HIV Voluntary Counselling Testing (VCT). Currently, a number of clinics will not carry delivery until they receive the latest HIV/AIDs status card of the expectant mother.  This ensures that the baby neither contracts the condition during the birth process, nor thereafter as the mother will have been taken through the modalities of bringing up her baby safely and cheerfully.

Safe sex, keeping off alcohol and cigarettes are neither to be negated by an expectant mother, assets Ashioya the advocate, as they are likely to directly expose the child’s life to danger.

Postnatal care follows immediately after delivery and is mandatory for the first year, the advocate continues to say. After birth, your baby is entitled to a name – and not an abusive one for that matter. She is also entitled to religious guidance and teachings. So, if you are a Christian, and haven’t baptized/dedicated your baby; you are behaving in a fashion that is contrary to the stipulations of the land.  It is also mandatory that she knows her customs. A child has a right to be exposed to their cultural practices in so far as they are not repugnant to justice and morality. Therefore it is important to teach a child her mother tongue even as much as we want the child to learn other foreign languages like English, elaborates Ashioya.

She has a right to nationality. That is why, if she is born at home, you have to report to the chief’s office, for him to issue a birth notification to set the preparations of the birth certificate sailing, explains the advocate.

We are made privy to the legality that a mother has to provide motherly care. In that regard, breastfeeding is your child’s right. This is an inference to the right parental care provided in Section 6. According to Ashioya, a mother who dumps her Infant at the infant’s biological father’s home is liable to punishment notwithstanding that the man neglected the child, by refusing to care and provide the child with the basic necessities for life. The mother has a legal duty to care for, protect and provide the child with the basic needs for life, which include breast milk except in circumstances that a mother cannot breastfeed a child for medical reasons such as cancer, HIV/AIDS, among others. There are legal measures that can be used later to deal with a man who neglects his child, and dumping a child is not one of them. It is therefore illegal to use an innocent and delicate life as a tool of revenge and vengeance against an irresponsible man, to the detriment of the child. This in law is termed as child negligence and child abuse. So, legally speaking, the boob is first the baby’s – before it’s yours, as it safeguards your baby’s right to good health.

Ashioya sheds light to the fact that your baby has a right to confidentiality and privacy found in Section 19. Now, this doesn’t mean that your baby’s entire anatomy should not be revealed in public if need be. It is about the right against conditions that may expose your baby to stigmatization and discrimination, for example, her HIV/AIDS status. Children are sensitive as they grow up, and any form of discrimination may have long term psychological effects on a child as opposed to an adult—particularly on issues that the child may be too young to understand. It is therefore prudent that parents or guardians to children know who is the right person to divulge sensitive, and personal information about the child to; in the sense that keeping quiet about a condition would be detrimental to the child in as far as those handling the child may riot know die best way to deal with the child, and at the same time it may be detrimental to other persons, adults or children.

However, divulging information about the child to anyone could create stigmatization and discrimination towards the child. Toe example, if a child is has HIV/AIDS, it is important to inform someone in position of authority so that adequate care is taken to ensure that such a child does not infect others and at the same time is treated with care and understanding. This information should be made confidential as much as possible and should only be revealed to the child when they can be able to understand, comprehend and be able to deal positively with the predicament.

In the same vein, your baby has a right against discrimination, according to Section 82 of the Constitution and Section 5 of the Children’s Act. Your baby should not be discriminated on the basis of colour, sex, age, size, religion, creed and all forms of discrimination.

However, there is something we could call positive discrimination in Section 12.  If your child has a form of disability, it is provided that she receives more attention, and it should not be seen that the child is being favored over the other children who may not need special attention.  Medical treatment, special care, education and training that is free of charge, or at a reduced cost, whenever possible, should be provided.  Locking away a child with disability is a violation of their rights and could call for resettling of the child in a children’s home.

Your baby also has a right against unhealthy cultural practices like FGM. So far, the penalty of such an offense is five years of imprisonment and a bond of Ksh 50,000.

Concerns
The Law does not prohibit circumcision of the infant boys. The process is extremely excruciating, sometimes poses dangers to the baby’s reproductive anatomy and, simply, it may not be what the child would ascribe to in future.  ‘So he should be left with freedom of choice’, articulates Ashioya. If it must be done, however, it should be done in hospital by a medical practitioner, not quacks.

There is not law compelling expectant mothers to go for HIV tests. No action is directed against them when they refuse to comply with this Health Law.

Another concern is that the law is yet to sharpen its eye on infanticide. Mothers undergoing acute postnatal depression should be separated from their babies. That is the purpose of having the babies in the nurseries.

For the nurses monitor the mother’s condition on the other side until proven to be well enough to attend to the baby.

Speaking of which, sufficient bedding’s should be provided for the sake of children’s health and rights. The country should channel its resources to maternity hospitals like Pumwani and the district hospitals for enough beds to keep the fatigued mother from rolling over the infant-better still, cribs, Ms Ashioya avers.

Ashioya, one of the few figures standing in place of the ‘baby-cot’ declares. ‘It is paramount that the baby, the future adult, has her rights in check—all for a better tomorrow’. Let all the parties involved- the Government, parents and society know that giving the baby what is duly his, is a duty, not a favour!

June Odhiambo Ashioya is an Advocate of the High Court of Kenya.

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